Should same-sex marriage be legal, even if it is immoral?

While the law is a moral enterprise on its face, it is not possible, nor is it wise to legislate against every kind of moral wrong.For example, while it is morally wrong to deliberately harm one’s body, and smoking cigarettes deliberately harms one’s body, it is generally not advisable to deny one the freedom to smoke cigarettes by outlawing smoking.The general principle is that we should only legislate against moral wrongs that have a major impact on the common good, or interfere with the exercise of the fundamental rights of our fellow citizens.A certain measure of liberty should be left to the individual to choose even those things that are morally wrong, because outlawing that evil may result in an overall increase in evil, and because it is practically impossible for the State to legislate against every form of moral wrong, yet alone to enforce it.

Some attempt to employ this principle as an argument for the legalization of same-sex marriage.It is argued that since liberty is to be preferred to constraint unless an exercise of liberty is to the detriment of the common good, the liberty of marriage should be extended to same-sex couples (even though same-sex marriage is immoral) because same-sex relationships are not detrimental to the public good.How might opponents of same-sex marriage respond to this argument?

While it is true that we should not legislate against all instances of moral wrong, this principle cannot be employed indiscriminately.If it were, no laws aimed at prohibiting immoral behavior could be passed!The burden of proof is on the person arguing we should not legislate against this or that particular moral wrong, to show why we should not do so.In this case, it is being argued that same-sex marriage, though morally wrong, does not negatively affect the public good.Like smoking, then, it should not be prohibited.Is it true that same-sex marriage will not impact the public good in a negative way?There are good reasons to think this is false.

First, extending the institution of marriage to same-sex couples is social declaration that homosexual sex/relationships and heterosexual sex/relationships are equal.This is manifestly false.The purpose of heterosexual sex and homosexual sex are very different (the former is for procreation and recreation, while the latter is only for recreation), as well as the health risks involved with both behaviors.There are virtually no health risks for engaging in monogamous heterosexual sex, but there are many health risks for engaging in (even) monogamous homosexual acts.

Second, it is a social declaration that moms and dads are not necessary for optimal child development.There is no denying the fact that the legal recognition of same-sex couples to adopt and rear children naturally and legally follows from the legal recognition of same-sex relationships as a valid form of civil marriage (in some instances the legal right to adopt actually precedes the legal recognition of same-sex relationships as a valid form of civil marriage).Granting marriage rights to same-sex couples, then, has ramifications for child-rearing.To recognize same-sex relationships as civil marriage is a tacit admission that moms and dads are not necessary for optimal child development—that two moms or two dads will equally suffice.This is wrong.Both moms and dads are needed for optimal child development.

This argument also fails because it ignores the critical difference between allowing people to participate in certain immoral behaviors without the threat of law, and actively declaring through the law that such behaviors are legally protected.The law is a moral teacher.To enshrine something into law is to make a moral declaration about that something: that it is good, or that it is bad.To give legal sanction to same-sex marriage where such sanction did not exist previously would require the creation of new legislation to redefine the institution of marriage.This legislation would have the effect of actively declaring that our society finds same-sex marriage to be a moral good.This is utterly different than the situation we find ourselves in today, in which same-sex couples can openly engage in committed relationships with one another, but without the blessing of society.The difference is one of social approval.Allowing them to engage in committed relationships without the threat of law is to grant them liberty; sanctioning their relationships by enacting laws recognizing their relationships as valid instantiations of civil marriage is to grant them social acceptance.

Ultimately, then, the argument from liberty fails.We should not open up the institution of marriage to same-sex couples.Not only would same-sex marriage negatively impact the common good of our society, but doing so would have the implicit effect of teaching society that a moral wrong is a moral good.

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6 Responses to “Should same-sex marriage be legal, even if it is immoral?”

“… we should not legislate against all instances of moral wrong, this principle cannot be employed indiscriminately.”

First, who gets to define “moral wrong”? And second, why can’t this principle “be employed indiscriminately”? Why not? You say, “If it were, no laws aimed at prohibiting immoral behavior could be passed!” but this hardly follows logically. Just saying it’s so doesn’t make it so; you must provide reasons and arguments. Otherwise, you are just bloviating (you’re welcome to your opinions and beliefs, but there is absolutely no reason whatsoever for anyone else to agree to share your opinions and beliefs without a little justification on your part).

“The burden of proof is on the person arguing we should not legislate against this or that particular moral wrong, to show why we should not do so.”

Again, it must be asked, “Why”? Why shouldn’t the burden of proof be on the side that wants to take away rights from a subset of taxing-paying American citizens? Why shouldn’t the burden of proof be on the side that claims to KNOW what constitute “moral wrongs”?

“Ultimately, then, the argument from liberty fails.”

Only in your mind! Without any reasoning or justification to back this point up, it’s just your opinion, not a reasoned philosophical argument. Don’t fool yourself; none of the rest of us (thinking people) are fooled!

You presume that morality is defined, rather than discovered. This presumes morality is subjective. You would need to justify this presumption.

I did not just say it is so. I offered a reductio ad absurdum argument: acknowledging that we should not legislate against all instances of moral wrong does not mean we should not legislate against any instances of moral wrong, otherwise we could not pass any legislation. How does that not follow? While you make the charge that I am just making assertions, you have done nothing to demonstrate why what I said is wrong, or made any arguments for a contrary position (you haven’t even stated a position).

The burden of proof is on the person arguing for same-sex marriage because they are the one who wants to change the law. Isn’t that evident? If you think the law needs to be different, you need to tell us why we should change it. Or do you propose that the onus is on the existing law to justify itself? That’s not the way policy works.

I did offer justification for thinking the argument from liberty fails. I argued that one cannot say liberty demands same-sex marriage laws because such laws will give no new liberties to same-sex couples. You, however, have not interacted with my argument. Dismissing someone’s argument with a waive of the hand and blathering rhetoric is not an argument.

You stated: “This legislation would have the effect of actively declaring that our society finds same-sex marriage to be a moral good. This is utterly different than the situation we find ourselves in today, in which same-sex couples can openly engage in committed relationships with one another, but without the blessing of society.”

Even though many states do no allow same-sex marriage, many of those same states allow some form of domestic partnership that allows for the same treatment as married couples. (See CA law prior to the recent court decision) Doesn’t that provide for social acceptance of these relationships in and of itself. If so, then allowing them to perform a marriage ceremony that allows same-sex couples to obtain the same rights they already have does not provide any additional social acceptance.

I agree. Providing legal recognition in any form to same-sex relationships provides them social acceptance. The more recognition they receive in the form of substantive rights/responsibilities, the greater their social acceptance.

In states like CT where civil unions are substantively equivalent to marriage (lacking the name only), they have been given near-equal status. In CA, where the Supreme Court ruled that if it looks, walks, and quacks like a duck, you have to call it a duck (a decision I agree with, logically at least, if not legally), we have completely equalized same-sex and opposite-sex relationships. In doing so, we have afforded both with equal social acceptance (at least from a legal perspective).

This is why I am opposed to recognizing same-sex relationships in any legal capacity. Given the reason for which government is even involved in regulating the natural institution of marriage (society’s need for, and socialization of children), there is no reason for the government to recognize same-sex relationships. They are not equally situated to opposite sex couples in that their relationships do not serve the same function in and for society. As such, there is no reason for the government to officially recognize their relationships, anymore than there is a need for the government to officially recognize friendships. As important as these types of relationships may be, they do not need, nor do they deserve the same sort of social support as marriage.

I’m not really sure what you mean in the 3rd sentence in your last paragraph (who is “them”). If you will clarify, I’ll respond in more detail. In general, however, I will say that when it comes to allowing same-sex couples to perform marriage ceremonies, they can, and do do this already (in states without same-sex marriage or domestic partnership/civil union laws). They simply are not recognized in any official capacity. In fact, entire cottage industries are devoted to this very enterprise, and no one is arguing that they shouldn’t be free to do this.

Let me also add that the statement you qouted should not be divorced from the context. My point was that in giving official sanction to same-sex couples in any way is to make a statement that we approve of their relationship in varying degrees. The closer we come to giving them the rights and benefits of marriage, the more approval we give them, and the more we make it clear that we have no moral qualms with homosexuality.